Tribes again try to intervene in casino preference suit

Citing a letter from the Department of the Interior promising to clear up some of its land-into-trust questions by "early 2013," the Mashpee Wampanoag tribe again is asking U.S. District Court to allow the tribe to intervene in KG Urban Enterprises' challenge of the preference given to tribes in the state's Expanded Gaming Act.

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By STEVE DeCOSTA

southcoasttoday.com

By STEVE DeCOSTA

Posted Jan. 24, 2013 at 12:01 AM

By STEVE DeCOSTA

Posted Jan. 24, 2013 at 12:01 AM

» Social News

Citing a letter from the Department of the Interior promising to clear up some of its land-into-trust questions by "early 2013," the Mashpee Wampanoag tribe again is asking U.S. District Court to allow the tribe to intervene in KG Urban Enterprises' challenge of the preference given to tribes in the state's Expanded Gaming Act.

The tribe seeks to intervene for a variety of legal reasons, even as it argues that it cannot because of its sovereign status. Its Catch-22 argument "respectfully requests that the court allow it to intervene for the sole purpose of dismissal and dismiss this case ... for failure to join the tribe as a necessary and indispensable party."

In its filing earlier this week, the Mashpee Wampanoags also asserted that "The tribe is also engaged in continued compact negotiations with the governor, which the tribe expects to complete successfully within the next 30 days with a compact it believes the DOI will approve."

A compact negotiated by the tribe and Gov. Deval Patrick was approved by the state Legislature before the July 31, 2012, deadline, but it was rejected by the Department of the Interior. Patrick said last week that negotiations had resumed but wouldn't comment on the status.

Citing the Department of the Interior letter and the resumed negotiations, the tribe dismissed KG's arguments about the compact rejection and the land-into-trust issues as "now-debunked speculation."

Approval of a negotiated compact by the Legislature and the Department of the Interior and land taken into trust — and possibly KG's lawsuit — are the remaining roadblocks to the tribe's proposed $500 million resort casino in Taunton. If the tribe meets those goals and gains the right to operate a sovereign casino, there would be no commercial casino licenses issued for Southeastern Massachusetts, squashing KG's plans for a resort on the New Bedford waterfront.

The Wampanoag Tribe of Gay Head (Aquinnah) also is seeking to intervene in the case, not to take advantage of the tribal preference but to protect its rights to offer gaming on tribal land on Martha's Vineyard. The Aquinnah tried to invoke the privilege but the governor refused to negotiate, claiming the tribe ceded its gaming rights in a 1980s land deal.

In a separate filing earlier this week, the Aquinnah claimed the federal Indian Gaming Regulatory Act gives any tribe with federal recognition and trust land the ability to operate a gaming facility. "Aquinnah's existing Indian lands are eligible for gaming under IGRA," the tribe said.

Even though KG amended its complaint to focus on the tribal preference and not the entirety of the Expanded Gaming Act, "If the court agrees with KG Urban ... the court must determine whether the Legislature would have enacted the bill without the unconstitutional provision," the Aquinnah filing said.

KG, a New York-based development firm, challenged the Expanded Gaming Act, claiming the tribal preference was an illegal, race-based set-aside. Judge Nathaniel Gorton threw out the case in February 2012 but, five months later, a federal appeals court panel of three judges ruled the dismissal was improper and ordered him to reconsider the case.